Father signed a relinquishment and consent to adoption at the time of his divorce in 2005. In 2007, Mother remarried and she and Stepfather filed to terminate Father's parental rights and complete Stepfather's Petition for Adoption without providing notice to Father. The Trial Court granted the adoption and termination. Father appealed. Father argued that since Stepfather did not qualify to file the adoption proceeding (because the children had not lived with him for one year), the adoption was not properly before the district court and accordingly, neither was the Petition for Termination. The Court of Appeals agreed with Father and set aside the termination and adoption. Mother and Stepfather petitioned for, and were granted cert.
The Supreme Court found that the District Court did have jurisdiction to hear the termination because Stepfather had filed the adoption with the termination proceedings. The Court found no additional requirement that Stepfather qualify perfectly for the adoption before filing to terminate Father's parental rights. In sum, while an adoption must be filed with the Petition to Terminate Parental rights in order for the district court to have jurisdiction, the Adoption Petitioner need not comply with all of U.C.A. 78B-6-135(7)(b) before filing the actions. Reversed to Court of Appeals to consider any other grounds for appeal.

In Re: E.L.F., 2011 UT App 244 (Utah Court of Appeals July 29, 2011).d
Mother appeals the Juvenile Court award of custody to Father. The Court of Appeals first finds that the order of permanent custody to Father is a final and appealable order. As to the merits of the appeal, the Court found that the Juvenile Court had jurisdiction to make the order and refused to disturb the Order of the Juvenile court because it had foundation for the order. The Juvenile Court found that Father believed that it was important that the children have a relationship with their mother, and Father was actively engaged in children's lives. The Juvenile Court also found that Mother had completed her service plan, however, according to treatment providers and other testimony at trial Mother had not internalized her treatment. Affirmed.dFull Decision Available at http://www.utcourts.gov/opinions/appopin/JV_elf072911.pdf

Mother and Father were divorced and Husband was awarded custody. In the Decree, the Court ordered that if Mother returned to SLC area, the parties would have joint-custody. Mother moved back to SLC area, but Father moved for and obtained a setting aside of that portion of the Decree as a perspective change in custody. Mother then filed a Petition to Modify based on her relocation to SLC and Father’s maltreatment of the minor child. Father moved to bifurcate the trial and have best interests and change of circumstances heard separately. The Trial court denied the motion and the Court of Appeals affirmed. Father petition for writ of cert, which was granted.
The Supreme Court found that while the trial court must keep the analysis of changed circumstances and bests interests analytically separate, it need not hold separate trials or limit a witnesses testimony to one or the other.
The Court further found that child support is an inherent issue if a change of custody is requested and can be addressed by the court even if not completely pleaded in a complaint.

Friday, November 11, 2011

In Re Baby E.Z., 2011 UT 38 (Utah Supreme Court, July 19, 2011)Mother moved to Utah while pregnant and placed the baby for adoption. Father moved to intervene in the adoption matter, but his intervention was denied. Father Appealed.Because an adoption proceeding requires a custody determination the PKPA applies. However, Father failed to raise PKPA at the trial court level. Because PKPA is not a jurisdictional issue, he cannot raise it for the first time on appeal. Because he failed to raise PKPA at the trial level, his claim is waived. Father also raised a due process challenge to the requirement of paternal assertion prior to a mother’s relinquishment. However, Father failed to raise this at the trial level.In short, because Father failed to preserve his grounds for appeal, both grounds were waived and not fully reviewed by the Court. Affirmed.

Husband and Wife divorced. Wife was awarded 1/2 interest in the parties farm estate where the parties had lived for the majority of the marriage. Husband appealed claiming the property was deeded to the minor children and Wife's challenge of the deed was barred by the statute of limitations. The trial court had concluded that Husband's acts of mortgaging the land without permission and over the objection of the children showed his lack of present intent to transfer when he deeded it to his children. Because he lacked the present intent to transfer, the transfer to the children was invalid. Further, the trial court found even he had the intent to transfer the property his fraud on Wife tolled the statute of limitations as to Wife because Husband himself had told Wife that it was invalid. She relied on his statement and his actions of unilaterally mortgaging the property as proof that he was the one true owner.

Coombs sought a stalking injunction against Dietrich (his ex-wife's new boyfriend) based on three incidents. In the first and second incidents, Dietrich merely called Coombs names and attempted to intimidate him. The third incident culminated in Dietrich slamming Coombs against the car and shutting his arm in the car door. The Court granted the stalking injunction. Dietrich appealed.

Dietrich argued that the first two incidents would not have caused a reasonable person to fear, and the third action alone is insufficient for the entry of a stalking injunction. The Court of appeals found that the first two incidents coupled with the third was sufficient for the entry of the stalking injunction. The independent incidents do not need to be fear inducing to warrant a Stalking injunction, but if the cumulative effect of the incidents causes fear that is sufficient. Affirmed

Wednesday, November 2, 2011

Turner had been found in contempt five times for failure to pay child support. The fifth time Turner did not pay the amount owing and served 6 months. After his release, the court issued another order to show cause and sentenced him to 12 months in jail without making a finding as to Turner's ability to pay. He appealed.

Turner argued that he should have been provided counsel at the show cause hearing because there was a chance that he would be subject to incarceration.

The Supreme Court found that due process requirements are met and punishment can be imposed if the alleged contemnor is found to have had notice of the order, ability to comply with the order and willful noncompliance with the order. No further safeguards are required, and if those safeguards are preserved the Court may impose jail time.

Tuesday, November 1, 2011

Husband and Wife divorced. Husband was awarded his retirement and the business. He was further awarded a majority of the debt and was ordered to pay alimony. Wife appealed the property division claiming she should be awarded a portion of the business and Husband’s retirement. She also appealed the alimony award arguing that the Court failed to consider husband’s fault, (Husband had given wife a STD) and wife’s health. Wife also appealed the Court’s prospective downward adjustments to alimony.

The Court of Appeals affirmed the property division, finding that while not equal as to the individual parts was equitable when evaluating the entire award. As to alimony, The Court of Appeals found that there was no need to analyze Wife’s health, because that is not one of the statutory factors. The Court did not have to analyze fault because it is an optional factor (“Court may consider fault”). However, the Court remanded the award for further findings as to the prospective downward adjustments (which the Court of Appeals found would be appropriate and consistent with rehabilitative alimony, the trial simply needed to categorize the alimony award). The Court of Appeals further remanded for findings as to the date of conclusion of alimony.

Disclaimer

:: By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.::

COPYRIGHT

Keep this Blawg Going. Click here to Donate

Search This Blog

Sign up to receive updates by email

If you would like to receive notice of new summaries by email, simply email utahfamilyblawg@gmail.com, and put “add me” in the subject line.I will send you the summaries before they are posted to the blawg and long before the advanced reports summaries are released